Hla Hart Essays In Jurisprudence And Philosophy

Hla Hart Essays In Jurisprudence And Philosophy-24
To say that the existence of law depends on facts and not on its merits is a thesis about the among laws, facts, and merits, and not otherwise a thesis about the individual relata.

According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.); as we might say in a more modern idiom, positivism is the view that law is a social construction.

Austin thought the thesis “simple and glaring.” While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.

For much of the next century an amalgam of their views, according to which law is the command of a sovereign backed by force, dominated legal positivism and English philosophical reflection about law.

By the mid-twentieth century, however, this account had lost its influence among working legal philosophers.

It says that they do not determine whether laws or legal systems .

Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law.Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” (1832, p.157) The positivist thesis does not say that law's merits are unintelligible, unimportant, or peripheral to the philosophy of law.Legal positivism has a long history and a broad influence.It has antecedents in ancient political philosophy and is discussed, and the term itself introduced, in mediaeval legal and political thought (see Finnis 1996).The only influential positivist theories are the views that moral norms are valid only if they have a source in divine commands or in social conventions.Such theists and relativists apply to morality the constraints that legal positivists think hold for law.Lawyers often use “positivist” abusively, to condemn a formalistic doctrine according to which law is always clear and, however pointless or wrong, is to be rigorously applied by officials and obeyed by subjects.It is doubtful that anyone ever held this view; but it is in any case false, it has nothing to do with legal positivism, and it is expressly rejected by all leading positivists.Every human society has some form of social order, some way of marking and encouraging approved behavior, deterring disapproved behavior, and resolving disputes.What then is distinctive of societies with legal systems and, within those societies, of their law?


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    Hart criticizes the concept of law that is formulated by John Austin in The Province of Jurisprudence Determined 1832 and that proposes that all laws are commands of a legally unlimited sovereign. Austin claims that all laws are coercive orders that impose duties or obligations on individuals.…

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    Edition of Hart has come out, but the second edition will serve just as well. So you will need to get a copy of that as well. We will be referring to a number of other books Finnis, Natural Law and Natural Rights Hart, Essays in Jurisprudence and Philosophy Fuller, The Morality of Law Dworkin, Taking Rights Seriously but you can rely on the copies in the law libraries available to you for those books. Getting through the reading list…

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